Despite the administration lawyers’ efforts to circumvent or abandon Geneva, the Supreme Court ruled in June 2006 in Hamdan v. Rumsfeld that prisoners in Guantanamo Bay are entitled Article 3 protections.

Justice Anthony Kennedy, of the majority opinion, observed that “violations of Common Article 3 are considered ‘war crimes,’” Sands wrote.

Less than 4 months later, the Military Commissions Act (MCA) was rushed through Congress before the Democrats took control the next year. A little known provision slipped into the MCA retroactively granted immunity to perpetrators of war crimes back to 1997, Jeff Stein said in Congressional Quarterly.

In effect, the administration’s lawyers had immunized themselves — but only within the borders of the U.S.

Sands described the real possibility of future war crime indictments because of the immunity granted by the MCA and the legal precedent of United States v. Altstoetter, which holds torture lawyers liable.

The MCA’s immunity clause was “very stupid,” a European prosecutor told Sands — it’s “much easier” for foreign investigators to intervene knowing that possible war crimes would never be addressed in the home country.

The Atlantic’s Andrew Sullivan said that “the memo from John Yoo — as well as revelations from Philippe Sands’ book — mean that Donald Rumsfeld, David Addington and John Yoo should not leave the United States any time soon. They will be at some point indicted for war crimes. They deserve to be.”